B-134805, MAR. 4, 1958

B-134805, MAR. 4, 1958

TO MAJOR OLIVER W. LEONARD, JR., C.E.:

BY LETTER OF HEADQUARTERS, U.S. ARMY ENGINEER CENTER AND FORT BELVOIR, FORT BELVOIR, VIRGINIA, DATED DECEMBER 4, 1957, YOUR CLAIM FOR PER DIEM AND FOR REIMBURSEMENT FOR A TAXICAB FARE FROM FORT BELVOIR TO WASHINGTON, D.C., ARISING INCIDENT TO TRAVEL AND TEMPORARY DUTY PERFORMED DURING THE PERIOD JULY 15 TO OCTOBER 9, 1956, WAS FORWARDED HERE FOR DIRECT SETTLEMENT. SINCE A SIMILAR CLAIM PREVIOUSLY FILED BY YOU WAS DISALLOWED IN OUR SETTLEMENT OF JULY 22, 1957, YOUR CLAIM WILL BE CONSIDERED AS A REQUEST FOR THE REVIEW OF THAT SETTLEMENT.

UNDER DEPARTMENT OF THE ARMY ORDERS DATED JULY 12, 1956, YOU WERE DIRECTED TO PROCEED ON OR ABOUT JULY 16, 1956, ON TEMPORARY DUTY FOR APPROXIMATELY 150 DAYS TO THULE, GREENLAND, UPON THE COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR PROPER STATION. SPECIAL INSTRUCTIONS IN THE ORDERS PROVIDED THAT "ALL TVL FROM THULE, GREENLAND AND TEMPORARY DY PERFORMED UNDER THIS ORDER CONSTITUTE DY OF A TYPE CONTEMPLATED BY PARA 4250.3, JTR.' YOU LEFT FORT BELVOIR UNDER THOSE ORDERS ON JULY 15 AND ARRIVED AT THULE ON JULY 17, 1956. UPON THE COMPLETION OF THE TEMPORARY ASSIGNMENT THERE YOU LEFT THULE ON OCTOBER 8 AND RETURNED TO FORT BELVOIR ON OCTOBER 9, 1956. IN A DEPARTMENT OF THE ARMY COMMUNICATION DATED OCTOBER 18, 1957, IT WAS STATED THAT YOUR ORDERS OF JULY 12, 1956, WERE AMENDED TO DELETE THE ABOVE-QUOTED PROVISIONS WHICH DESCRIBE THE TRAVEL AND TEMPORARY DUTY DIRECTED AS BEING OF THE TYPE CONTEMPLATED BY PARAGRAPH 4250.3 OF THE JOINT TRAVEL REGULATIONS. THE REASON FOR THAT ACTION WAS NOT STATED.

REGULATIONS GOVERNING THE ENTITLEMENT OF MEMBERS OF THE ARMED FORCES TO TRAVEL AND TRANSPORTATION ALLOWANCES ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4250.3 OF THOSE REGULATIONS PROVIDES THAT MEMBERS TRAVELING OR PERFORMING TEMPORARY DUTY OUTSIDE THE CONTINENTAL UNITED STATES ARE NOT ENTITLED TO TRAVEL PER DIEM ALLOWANCES "WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR THE RESERVE COMPONENTS OR RESERVE OFFICERS TRAINING CORPS STUDENTS, AND OTHER SIMILAR ACTIVITIES (INCLUDING DUTY AS OBSERVER OR UMPIRE) WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED.' SIMILAR INSTRUCTIONS COVERING TRAVEL AND TEMPORARY DUTY IN THE UNITED STATES ARE CONTAINED IN PARAGRAPH 4201.6 OF THE REGULATIONS. IN DECISION OF AUGUST 22, 1957, 37 COMP. GEN. 126, IT WAS STATED THAT THE QUESTION OF WHETHER A PARTICULAR ASSIGNMENT FALLS WITHIN THE SCOPE OF THOSE PROVISIONS IS ONE OF FACT, FOR DETERMINATION USUALLY ON THE BASIS OF AN ADMINISTRATIVE EVALUATION OF THE FACTS SURROUNDING THE ASSIGNMENT BECAUSE OF KNOWLEDGE OF THE ADMINISTRATIVE PERSONNEL INVOLVED AS TO THE LOCAL CIRCUMSTANCES UPON WHICH THE EVALUATION MUST REST, AND THAT IF THAT DETERMINATION LATER IS TO BE CHANGED, THE SECOND DETERMINATION ALSO MUST BE BASED ON AN EVALUATION OF THE FACTS SURROUNDING THE PARTICULAR DUTY ASSIGNMENT. TO BE EFFECTIVE, SUCH SECOND DETERMINATION MUST BE OF NECESSITY HAVE AS ITS BASIS SUFFICIENT INFORMATION OR FACTS TO ESTABLISH THAT THE FIRST DETERMINATION CLEARLY WAS ERRONEOUS.

SINCE THE PURPORTED AMENDMENT IN THE COMMUNICATION OF OCTOBER 18, 1957, OF YOUR ORDERS OF JULY 12, 1956, FURNISHES NO INFORMATION AS TO THE BASIS FOR THE ACTION TAKEN, IT DOES NOT PROVIDE GROUNDS SUFFICIENT TO OVERCOME THE ADMINISTRATIVELY DETERMINED FIELD DUTY RESTRICTIONS OF THOSE ORDERS. IT MUST BE CONCLUDED, THEREFORE, THAT NO PROPER BASIS EXISTS FOR THE PAYMENT TO YOU OF THE PER DIEM CLAIMED. IT APPEARS, HOWEVER, THAT YOU ARE ENTITLED TO REIMBURSEMENT FOR THE $5 PAID AS A TAXICAB FARE IN PROCEEDING FROM FORT BELVOIR TO WASHINGTON, D.C., IN CONNECTION WITH THE TRAVEL IN QUESTION. ACCORDINGLY, YOU WILL BE ALLOWED THAT AMOUNT IN A SETTLEMENT WHICH WILL ISSUE IN DUE COURSE. OTHERWISE, THE SETTLEMENT OF JULY 22, 1957, IS SUSTAINED.